EXHIBIT 3.1
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CROWN CRAFTS MERGER SUB, INC.
(Originally incorporated August 5, 2003)
The following having been duly adopted and approved in accordance with
Sections 242 and 245 of the General Corporation Law of the State of Delaware,
Crown Crafts Merger Sub, Inc. does hereby certify that:
ARTICLE I.
The name of the Corporation is Crown Crafts, Inc. (the "Corporation").
ARTICLE II.
The Corporation is organized pursuant to the provisions of the Delaware
General Corporation Law ("DGCL").
ARTICLE III.
The period of duration of the Corporation is perpetual.
ARTICLE IV.
The purpose of the Corporation is to engage in any lawful act or
activity for which a Corporation may be organized under the DGCL.
ARTICLE V.
(a) Authorized Classes and Series and Numbers of Shares. The aggregate
number of shares of capital stock that the Corporation shall have authority to
issue is 75,000,000 shares, (i) 74,000,000 shares of which shall be common
stock, with a par value of $0.01 per share (the "Common Stock"), and (ii)
1,000,000 shares of which shall be preferred stock, with a par value of $0.01
per share (the "Preferred Stock").
(i) Common Stock. The Common Stock shall consist of 73,500,000
shares of Series A Common Stock (the "Series A Common Stock"), 327,940
shares of Series B Common Stock (the "Series B Common Stock") and
172,060 shares of Series C Common Stock (the "Series C Common Stock"),
with each such series of Common Stock to have such voting powers,
designations, preferences and relative, participating and other special
rights, and such qualifications, limitations and restrictions, as set
forth below.
(ii) Preferred Stock. Notwithstanding anything in subparagraph
(d)(xvii) of this Article V to the contrary, the Preferred Stock may be
issued from time to time in one or more series and only as described
below in connection with the Rights Plan (defined hereinafter). All
shares of Preferred Stock shall be of equal rank and shall be
identical,
except in respect of the matters that may be fixed by the Board of
Directors as hereinafter provided, and each share of each series shall
be identical with all other shares of such series. The Board of
Directors of the Corporation is expressly authorized to provide for the
issuance of all or any of the shares of Preferred Stock in one or more
series and to fix the number of shares of each such series. Each series
of Preferred Stock may entitle the holders of shares of such series to
the rights of voting and economic participation equivalent to those of
holders of any multiple of shares of Series A Common Stock, may be
convertible into shares of Series A Common Stock and otherwise may
possess such voting powers, full or limited, or no voting powers, and
such other designations, qualifications, limitations, restrictions and
relative rights as are consistent with this subparagraph (a)(ii) and
adopted by the Board of Directors providing for the issuance of such
shares and as may be permitted by the DGCL; provided that no series of
Preferred Stock shall have any economic rights, preferences or powers
superior to the shares of Series A Common Stock other than specifically
provided above or entitle holders thereof to any redemption right not
granted to holders of Series A Common Stock under the Rights Plan. The
Board of Directors is also expressly authorized to increase or decrease
(but not below the number of shares of such series then outstanding)
the number of shares of any series of Preferred Stock subsequent to the
issuance of shares of that series. In case the number of shares of any
such series is so decreased, the shares constituting such decrease
shall resume the status that they had prior to the adoption of the
resolution or resolutions originally fixing the number of shares of
such series. Notwithstanding anything herein to the contrary, in no
event shall the Corporation issue any shares of Preferred Stock other
than in connection with any exercise of the stock purchase rights
issued pursuant to that certain Amended and Restated Rights Agreement
between the Corporation and SunTrust Bank dated as of August 6, 2003,
as the same may be amended from time to time in accordance with its
terms (the "Rights Plan").
(b) Certain Definitions. For the purposes of the designations that
follow, the following terms shall have the meanings specified:
"Additional Shares of Series A Common Stock" shall mean all shares of
Series A Common Stock issued or sold (or deemed to be issued pursuant to
subparagraph (d)(viii) or (d)(ix) of this Article V) by the Corporation after
the Original Issue Date of the Series B Common Stock or the Series C Common
Stock, whether or not subsequently reacquired or retired by the Corporation,
other than shares of Series A Common Stock issued (i) upon the exercise or
partial exercise of the Warrants, (ii) upon the conversion of the Series B
Common Stock or the Series C Common Stock into shares of Series A Common Stock;
or (iii) pursuant to that certain Amended and Restated Restricted Stock Plan of
the Corporation adopted as of June 17, 2003.
"Affiliate" with respect to a particular person shall mean a person
that directly or indirectly controls, is controlled by, or is under common
control with such person; control for such purpose meaning the possession,
directly or indirectly, of the power to direct or cause the direction of the
management or policies of a person, whether through the ownership of voting
securities, by contract or otherwise.
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"Business Day" shall mean any day on which banks are open for business
in New York City (other than a Saturday, Sunday or legal holiday in the States
of New York or New Jersey), provided, that any reference to "days" (unless
Business Days are specified) shall mean calendar days.
"CCI" shall mean Crown Crafts, Inc., a Georgia corporation, which
merged with and into the Corporation pursuant to a Certificate of Ownership and
Merger filed with the Secretary of State of Delaware.
"Conversion Price" shall have the meaning given to such term in
subparagraph (d)(v)(A) of this Article V.
"Conversion Rate" shall have the meaning given to such term in
subparagraph (d)(v)(A) of this Article V.
"Convertible Securities" shall mean any evidences of indebtedness,
shares of capital stock (other than Series A Common Stock) or other securities
that are or may be at any time directly or indirectly convertible into or
exchangeable for Additional Shares of Series A Common Stock.
"Credit Agreement" shall mean that certain Credit Agreement by and
among CCI, Churchill Weavers, Inc., Hamco, Inc., and Crown Crafts Infant
Products, Inc., as borrowers, and Wachovia Bank, National Association (successor
by merger to Wachovia Bank, N.A.), as a lender and as agent for the lenders
thereunder, dated as of July 23, 2001, as amended.
"Fair Value" shall mean, with respect to any securities or other
property, the fair value thereof as of a date that is within fifteen (15) days
of the date as of which the determination is to be made (a) determined by
agreement between the Corporation and the Required Holders, or (b) if the
Corporation and the Required Holders fail to agree, determined jointly by an
independent investment banking firm retained by the Corporation and by an
independent investment banking firm retained by the Required Holders, either of
which firms may be an independent investment banking firm regularly retained by
the Corporation, or (c) if the Corporation or the Required Holders shall fail so
to retain an independent investment banking firm within ten (10) Business Days
of the retention of such a firm by the Required Holders or the Corporation, as
the case may be, determined solely by the firm so retained, or (d) if the firms
so retained by the Corporation and by such holders shall be unable to reach a
joint determination within fifteen (15) Business Days of the retention of the
last firm so retained, determined by another independent investment banking firm
which is not a regular investment banking firm of the Corporation chosen by the
first two such firms.
"Invested Amount" per share of Series B Common Stock or Series C Common
Stock shall mean the price per share at which shares of such series are issued
on the Original Issue Date thereof (as such price is adjusted for changes in the
shares of such series by stock split, stock dividend, or the like occurring
after such Original Issue Date).
"Liquidation" shall mean the liquidation, dissolution or winding up of
the Corporation, or such of the Corporation's subsidiaries the assets of which
constitute all or substantially all the assets of the business of the
Corporation and its subsidiaries taken as a whole.
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"Loan Agreement" shall mean that certain Subordinated Note and Warrant
Purchase Agreement by and among CCI and Wachovia Bank, National Association
(successor by merger to Wachovia Bank, N.A.), The Prudential Insurance Company
of America and Banc of America Strategic Solutions, Inc. (as assignee of Bank of
America, N.A.), dated as of July 23, 2001, as amended.
"Loan Closing Date" shall mean the closing date of the transactions
contemplated by the Credit Agreement and the Loan Agreement.
"Market Price" shall mean with respect to Series A Common Stock, as of
any date specified herein, the amount per share equal to (i) the average sale
price of the last sale price of shares of Series A Common Stock, regular way, or
of shares of such stock (or equivalent equity interests) for the immediately
preceding twenty (20) Business Days or, if no such sale takes place on any such
date, the average of the closing bid and asked prices thereof on such date, in
each case as officially reported on the principal national securities exchange
on which the same are then listed or admitted to trading; or (ii) if no shares
of Series A Common Stock are then listed or admitted to trading on any national
securities exchange, the average sale price of the last sale price of shares of
Series A Common Stock, regular way, for the immediately preceding twenty (20)
Business Days; or, if no such sale takes place on any such date, the average of
the reported closing bid and asked prices thereof on such date, in each case as
quoted in the Nasdaq National Market, as published by the National Quotation
Bureau, Incorporated or any similar successor organization; and, in either case,
as reported by any member firm of the New York Stock Exchange selected by the
Corporation; or (iii) if no shares of Series A Common Stock are then listed or
admitted to trading on any national securities exchange or quoted or published
in the over-the-counter market, the higher of (x) the book value thereof as
determined by any firm of independent certified public accountants of recognized
national standing selected by the Board of Directors of the Corporation, as of
the last day of any month ending within sixty (60) days preceding the date as of
which the determination is to be made or (y) the Fair Value thereof; provided,
that all determinations of the Market Price shall be appropriately adjusted for
any stock dividends, stock splits or other similar transactions during such
period.
"Options" shall mean rights, options or warrants to subscribe for,
purchase or otherwise acquire either Additional Shares of Series A Common Stock
or Convertible Securities.
"Original Issue Date" with respect to each of the Series B Common Stock
and the Series C Common Stock shall mean the date on which shares of such series
are first actually issued by the Corporation pursuant to exercise of any
Warrants.
"Required Holders" shall mean the holders of at least 66-2/3% of all
the shares of Series B Common Stock and Series C Common Stock at the time
outstanding, determined on the basis of the number of shares of Series A Common
Stock into which such shares could be converted (assuming for this purpose that
all conditions for conversion have been satisfied, whether or not such is
actually the case).
"Sale or Merger" shall mean any of the following:
(i) the merger, reorganization or consolidation of the
Corporation or such subsidiary or subsidiaries of the Corporation the
assets of which constitute all or
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substantially all the assets of the business of the Corporation and its
subsidiaries taken as a whole into or with another corporation in which
the stockholders of the Corporation or such subsidiaries immediately
preceding such merger, reorganization or consolidation (solely by
virtue of their shares or other securities of the Corporation or such
subsidiaries) shall own fewer than fifty percent (50%) of the voting
securities of the surviving corporation;
(ii) the sale, transfer or lease (but not including a transfer
or lease by pledge or mortgage to a bona fide lender), whether in a
single transaction or pursuant to a series of related transactions, of
all or substantially all the assets of the Corporation, whether
pursuant to a single transaction or a series of related transactions or
plan (which assets shall include for these purposes fifty percent (50%)
or more of the outstanding voting interests of such of the
Corporation's subsidiaries the assets of which constitute all or
substantially all the assets of the Corporation and its subsidiaries
taken as a whole);
(iii) the sale, transfer or lease (but not including a
transfer or lease by pledge or mortgage to a bona fide lender), whether
in a single transaction or pursuant to a series of related
transactions, of all or substantially all the assets of such of the
Corporation's subsidiaries the assets of which constitute all or
substantially all of the assets of the Corporation and such
subsidiaries taken as a whole; or
(iv) the sale or transfer, whether in a single transaction or
pursuant to a series of related transactions, of securities of the
Corporation such that all holders of securities of the Corporation that
are entitled to vote by virtue of holding such securities with respect
to matters generally that are voted on by stockholders of the
Corporation (and not any matter requiring an additional series or other
special vote) (collectively, the "Corporation's Voting Power")
immediately prior to such transaction or series of related transactions
do not hold after such transaction such securities of the Corporation
that constitute more than a majority of the Corporation's Voting Power.
"Series A Common Stock Equivalents" shall mean securities or rights
convertible into or entitling the holder thereof to purchase or receive shares
of Series A Common Stock.
"Warrants" shall mean those certain Series B Common Stock Purchase
Warrants and that certain Series C Common Stock Purchase Warrant (as the same
may be divided or combined in accordance with their terms) of even date
therewith issued pursuant to the Loan Agreement, and any amendments,
modifications or replacements thereof, including, without limitation, any
Warrants to acquire shares of the capital stock of the Corporation issued in
connection with the merger of CCI with and into the Corporation.
(c) Series A Common Stock. The following is a statement of the
preferences, limitations and relative rights in respect of the Series A Common
Stock.
(i) Voting Rights. With respect to all such matters upon which
stockholders are entitled to vote or give consent, each holder of
Series A Common Stock shall be entitled to one (1) vote (in person or
by proxy) for each share of Series A Common Stock held by such holder
on the record date for the determination of stockholders entitled to
vote.
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(ii) Dividends. Subject to the provisions of applicable law,
the holders of shares of Series A Common Stock shall be entitled to
receive, when and as declared by the Board of Directors, out of the
assets of the Corporation legally available therefor, dividends or
other distributions, whether payable in cash, property or securities of
the Corporation.
(iii) Liquidation. In the event of a Liquidation or other
similar event, whether voluntary or involuntary, after payment or
provision for payment of the debts and other liabilities of the
Corporation, the assets of the Corporation shall be distributed ratably
to the holders of Series A Common Stock in proportion to the number of
shares held by them.
(d) Series B Common Stock and Series C Common Stock. The following is a
statement of the designations and preferences, limitations and relative rights
in respect of each of the Series B Common Stock and the Series C Common Stock.
(i) Rank. Each of the Series B Common Stock and the Series C
Common Stock shall, with respect to dividend rights and rights on
Liquidation, rank pari passu with the Series A Common Stock on the
basis of the number of shares of Series A Common Stock that each share
of Series B Common Stock or Series C Common Stock could be converted
into in accordance with subparagraph (d)(v) of this Article V.
(ii) Voting Rights. Except as otherwise provided in
subparagraph (d)(xvii) of this Article V or as otherwise provided by
law, the holders of Series B Common Stock and of Series C Common Stock
shall have no voting rights.
(iii) Dividends. In the event that any dividends are declared
or paid on the Series A Common Stock (other than dividends paid in
shares of additional Series A Common Stock or Series A Common
Equivalents that are subject to subparagraph (d)(x) of this Article V),
the holder of each share of Series B Common Stock and of Series C
Common Stock shall be entitled to receive like dividends on the basis
of the number of shares of Series A Common Stock into which such share
of Series B Common Stock or Series C Common Stock, as the case may be,
could be converted in accordance with subparagraph (d)(v) of this
Article V, assuming for such purposes that all conditions for
conversion have been satisfied, whether or not such is actually the
case.
(iv) Liquidation. In the event of a Liquidation or other
similar event, each holder of a share of Series B Common Stock or
Series C Common Stock shall be entitled to receive a share of the
proceeds thereof identical to those received by the holders of the
Series A Common Stock on the basis of the number of shares of Series A
Common Stock into which a share of Series B Common Stock or Series C
Common Stock could be converted in accordance with subparagraph (d)(v)
of this Article V, assuming for such purpose that all conditions for
conversion have been satisfied, whether or not such is actually the
case.
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(v) Conversion Price and Rate.
(A) Subject to and in compliance with the provisions
of this subparagraph (d)(v), shares of Series B Common Stock
and of Series C Common Stock may, at the option of the holder,
be converted after the occurrence of one of the events listed
below with respect to a particular series into fully paid and
nonassessable shares of Series A Common Stock at the rate (the
"Conversion Rate" of such series) of one share of Series B
Common Stock or Series C Common Stock, as the case may be, to
the number of shares of Series A Common Stock that equals the
quotient obtained by dividing the Invested Amount of the
series in question by the Conversion Price of such series
(defined hereinafter). Thus, the number of shares of Series A
Common Stock to which a holder of Series B Common Stock or
Series C Common Stock shall be entitled upon any conversion
provided for in this subparagraph (d)(v) shall be the product
obtained by multiplying the Conversion Rate of such series by
the number of shares of such series being converted. Such
conversion shall be deemed to have been made immediately prior
to the close of business on the date of the surrender of the
shares of the series to be converted in accordance with the
procedures described in subparagraph (d)(v)(B) of this Article
V. The "Conversion Price" of each of the Series B Common Stock
and the Series C Common Stock shall be equal to the Invested
Amount thereof, except as otherwise adjusted as provided
hereunder in subparagraphs (d)(vi) through (xiv) of this
Article V. The initial Conversion Rate of each of the Series B
Common Stock and the Series C Common Stock shall be one share
of such series for 44.69107183 shares of Series A Common
Stock.
(1) Each share of Series B Common Stock may
be converted at any time at the option of the holder
thereof into shares of Series A Common Stock
following the transfer of such share of Series B
Common Stock by the person to which the Corporation
originally issued such share (the "Original Series B
Holder") to a person not an Affiliate of the Original
Series B Holder.
(2) The shares of Series C Common Stock may
be converted at any time at the option of the holders
thereof into shares of Series A Common Stock
following the earliest to occur of the following
events:
(a) with respect to a particular
share of Series C Common Stock, the transfer
of such share of Series C Common Stock by
the person to which the Corporation
originally issued such share (the "Original
Series C Holder") to a person not an
Affiliate of the Original Series C Holder;
(b) with respect to all shares of
Series C Common Stock then outstanding, the
closing of a Sale or Merger of the
Corporation;
(c) with respect to all shares of
Series C Common Stock then outstanding, the
transfer (whether in one or a series of
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transactions over time) after the Loan
Closing Date by the individuals constituting
the Corporation's Management Group (defined
for this purpose to mean the President,
Chief Executive Officer, Chief Operating
Officer, Chief Financial Officer and each
Vice President) of greater than fifty
percent (50%) of the Series A Common Stock
represented on an as-converted or
as-exercised basis by the shares of Series A
Common Stock and Series A Common Stock
Equivalents held in the aggregate by the
Management Group as of the Loan Closing
Date; provided, however, that such transfer
shall not include any pledge of shares of
Series A Common Stock made pursuant to a
bona fide loan transaction that creates a
mere security interest or any transfer to a
trust for the benefit of a member of
Management Group or for the benefit of an
ancestor, descendant or spouse of such
member, provided also that such member
retains control over voting such shares;
(d) with respect to all shares of
Series C Common Stock then outstanding, the
transfer after the Loan Closing Date by
those persons who constitute, as of the Loan
Closing Date, the three largest stockholders
of the Corporation, in one or a series of
transactions over time, of greater than
seventy-five percent (75%) of the Series A
Common Stock represented on an as-converted
or as-exercised basis by the shares of
Series A Common Stock and Series A Common
Stock Equivalents outstanding on the Loan
Closing Date;
(e) with respect to all shares of
Series C Common Stock then outstanding, the
occurrence of an Event of Default (as
defined in the Loan Agreement or the Credit
Agreement) by the Corporation following the
Loan Closing Date consisting of the
nonpayment of principal, interest or any
other amount due and owing to The Prudential
Insurance Company of America or its
successors or assigns under either the
Credit Agreement or the Loan Agreement;
(f) with respect to all shares of
Series C Common Stock then outstanding, the
failure by the Corporation to pay an
aggregate of $250,000 in indebtedness,
whether principal or interest, in addition
to that described in clause (e) above;
(g) with respect to all shares of
Series C Common Stock then outstanding, the
resignation, removal or death at one time or
over time of one third (1/3) of the members
of the Board of Directors and the election
of substitutes therefor at any time
following the Loan Closing Date; and
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(h) the breach following the Loan
Closing Date of any of the financial
covenants made by the Corporation in the
Loan Agreement or the Credit Agreement.
In the event that any of the events described in this subparagraph (d)(v)(A)(2)
shall occur prior to the Original Issue Date of the Series C Common Stock, all
the holders of shares of Series C Common Stock shall be entitled to exercise the
conversion rights provided in this subparagraph (d)(v) at any time following
issuance of such shares.
(B) Mechanics of Conversion. Notwithstanding the
provisions of subparagraph (d)(v)(A) of this Article V, the
Corporation shall not be obligated to issue certificates
evidencing the shares of Series A Common Stock issuable upon
conversion unless the certificates evidencing the shares of
Series B Common Stock or Series C Common Stock being converted
are either delivered to the Corporation or its transfer agent
as provided below, or any holder of any such certificates
notifies the Corporation or its transfer agent that such
certificates have been lost, stolen or destroyed and executes
an agreement satisfactory to the Corporation to indemnify the
Corporation from any loss incurred by it in connection with
such certificates. Upon the occurrence of such conversion, the
holders of Series B Common Stock or Series C Common Stock
subject thereto shall surrender the certificates representing
such shares at the office of the Corporation or any transfer
agent for the same, and shall give written notice to the
Corporation at such office of the name or names in which such
holder wishes the certificate or certificates for shares of
Series A Common Stock to be issued, if different from the name
shown on the books and records of the Corporation. The
Corporation shall, as soon as practicable thereafter and in no
event later than twenty (20) days after the surrender of the
certificates of the shares of the series sought to be
converted, issue and deliver at such office to the holder of
such shares, or to the nominee or nominees of such holder as
provided in such notice, a certificate or certificates for the
number of shares of Series A Common Stock into which the
shares of Series B Common Stock or Series C Common Stock (as
the case may be) were convertible on the date on which such
conversion was effective to which such holder shall be
entitled as provided in such sections. The delivery of the new
certificates may be conditioned on the person or persons to
which the holder has requested delivery making such written
representations as may reasonably be required by the
Corporation to the effect that the shares to be received upon
conversion are not being acquired and will not be transferred
in any way that might violate the then applicable securities
laws. The person or persons entitled to receive the shares of
Series A Common Stock issuable upon a conversion pursuant to
subparagraph (d)(v)(A) of this Article V shall be treated for
all purposes as the record holder or holders of such shares of
Series A Common Stock as of the effective date of conversion
specified in such subsection.
(vi) Adjustment for Additional Shares of Series A Common
Stock. In case the Corporation, at any time or from time to time after
the Original Issue Date of the Series B Common Stock and of the Series
C Common Stock, respectively, shall issue or sell Additional Shares of
Series A Common Stock, including Additional Shares of Common
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Stock deemed to be issued pursuant to subparagraphs (d)(viii) and
(d)(ix) of this Article V, without consideration or for a consideration
per share (determined pursuant to subparagraph (d)(ix) of this Article
V), less than the Market Price of such series in effect on the date of
and immediately prior to such issue or sale, then, and in each such
case, subject to subparagraph (d)(xiv) of this Article V, the
Conversion Price of such series shall be reduced, concurrently with
such issue or sale, to a price determined by multiplying the Conversion
Price of such series then in effect by a fraction,
(A) the numerator of which shall be equal to (i) the
number of shares of Series A Common Stock outstanding
immediately prior to such issue or sale plus (ii) the number
of shares of Series A Common Stock which the aggregate
consideration received by the Corporation for the total number
of such Additional Shares of Series A Common Stock so issued
or sold would purchase at the greater of the Market Price then
in effect or the Conversion Price of the Series B Common Stock
or the Series C Common Stock then in effect; and
(B) the denominator of which shall be equal to the
number of shares of Series A Common Stock outstanding
immediately after such issue or sale of Additional Shares of
Series A Common Stock,
provided that, for the purposes of this subparagraph (d)(vi), (x) immediately
after any Additional Shares of Series A Common Stock are deemed to have been
issued pursuant to subparagraph (d)(viii) or (d)(ix) of this Article V, such
Additional Shares of Series A Common Stock shall be deemed to be outstanding,
and (y) treasury shares shall not be deemed to be outstanding. Any adjustment to
the Conversion Price of the Series B Common Stock or the Series C Common Stock
shall cause simultaneously a corresponding adjustment to the Conversion Rate of
such series.
(vii) Extraordinary Dividends and Distributions. In case the
Corporation at any time or from time to time after the Original Issue
Date of the Series B Common Stock or the Series C Common Stock, as the
case may be, shall declare, order, pay or make a dividend or other
distribution (including, without limitation, any distribution of other
or additional stock or other securities or property or Options by way
of dividend or spin-off, reclassification, recapitalization or similar
corporate rearrangement, any redemption or acquisition of any such
stock or Options on the Series A Common Stock, and any issuance of any
stock or other securities or property under the Rights Plan, whether
pursuant to any exercise of the stock purchase rights provided for
therein or any exchange of such rights or otherwise) other than a
dividend described in subparagraph (d)(iii) or (d)(x) of this Article V
or payable in Additional Shares of Series A Common Stock (except for
issuances in connection with the Rights Plan) or in Options for Common
Stock, then and in each such event provision shall be made so that the
holders of Series B Common Stock or Series C Common Stock shall receive
upon conversion thereof, in addition to the number of shares of Series
A Common Stock receivable thereupon, the amount of securities and other
property of the Corporation which they would have received had their
shares of Series B Common Stock or Series C Common Stock been converted
into Series A Common Stock on the date of such event and had they
thereafter, during the period from the date of such event to and
including the date of
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conversion, retained such securities and other property receivable by
them as aforesaid during such period, subject to all other adjustments
called for during such period under subparagraphs (d)(vi) through (xiv)
of this Article V with respect to the rights of the holders of the
Series B Common Stock and the Series C Common Stock.
(viii) Treatment of Options and Convertible Securities. In
case the Corporation, at any time or from time to time after the
Original Issue Date of the Series B Common Stock or the Series C Common
Stock, as the case may be, shall issue, sell, grant or assume, or shall
fix a record date for the determination of holders of any series of
securities entitled to receive, any Options or Convertible Securities,
whether or not such Options or the right to convert or exchange any
such Convertible Securities are immediately exercisable, then, and in
each such case, the maximum number of Additional Shares of Series A
Common Stock (as set forth in the instrument relating thereto, without
regard to any provisions contained therein for a subsequent adjustment
of such number) issuable upon the exercise of such Options or, in the
case of Convertible Securities, issuable upon the conversion or
exchange of such Convertible Securities (or the exercise of such
Options for Convertible Securities and subsequent conversion or
exchange of the Convertible Securities issued), shall be deemed to be
Additional Shares of Series A Common Stock issued as of the time of
such issue, sale, grant or assumption or, in case such a record date
shall have been fixed, as of the close of business on such record date;
provided that such Additional Shares of Series A Common Stock shall not
be deemed to have been issued unless the consideration per share
(determined pursuant to subparagraph (d)(ix) of this Article V) of such
shares would be less than the Market Price of the Series B Common Stock
or the Series C Common Stock, as the case may be, in effect, in each
case, on the date of and immediately prior to such issue, sale, grant
or assumption or immediately prior to the close of business on such
record date or, if the Series A Common Stock trades on an ex-dividend
basis, on the date prior to the commencement of ex-dividend trading, as
the case may be; provided, further, that in any such case in which
Additional Shares of Common Stock are deemed to be issued,
(A) if an adjustment of the Conversion Price (or the
corresponding Conversion Rate) of either the Series B Common
Stock or the Series C Common Stock shall be made upon the
fixing of a record date as referred to in the first sentence
of this subparagraph 5(d)(viii), no further adjustment of such
Conversion Price (or the corresponding Conversion Rate) shall
be made as a result of the subsequent issue or sale of any
Options or Convertible Securities for the purpose of which
such record date was set;
(B) no further adjustment of such Conversion Price
(or the corresponding Conversion Rate) shall be made upon the
subsequent issue or sale of Additional Shares of Common Stock
or Convertible Securities upon the exercise of such Options or
the conversion or exchange of such Convertible Securities;
(C) if such Options or Convertible Securities by
their terms provide, with the passage of time or otherwise,
for any change in the consideration payable to the
Corporation, or change in the number of Additional Shares of
Series A
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Common Stock issuable, upon the exercise, conversion or
exchange thereof (by change of rate or otherwise), such
Conversion Price (and corresponding Conversion Rate) computed
upon the original issue, sale, grant or assumption thereof (or
upon the occurrence of the record date with respect thereto),
and any subsequent adjustments based thereon, shall, upon any
such change becoming effective, be recomputed to reflect such
change insofar as it affects such Options, or the rights of
conversion or exchange under such Convertible Securities,
which are outstanding at such time;
(D) upon the expiration of any such Options or of the
rights of conversion or exchange under any such Convertible
Securities that shall not have been exercised (or upon
purchase by the Corporation and cancellation or retirement of
any such Options that shall not have been exercised or of any
such Convertible Securities the rights of conversion or
exchange under which shall not have been exercised), such
Conversion Price (and corresponding Conversion Rate) computed
upon the original issue, sale, grant or assumption thereof (or
upon the occurrence of the record date with respect thereto),
and any subsequent adjustments based thereon, shall, upon such
expiration (or such cancellation or retirement, as the case
may be), be recomputed as if:
(1) in the case of Options for Series A
Common Stock or in the case of Convertible
Securities, the only Additional Shares of Series A
Common Stock issued or sold (or deemed issued or
sold) were the Additional Shares of Series A Common
Stock, if any, actually issued or sold upon the
exercise of such Options or the conversion or
exchange of such Convertible Securities and the
consideration received therefor was (a) an amount
equal to (i) the consideration actually received by
the Corporation for the issue, sale, grant or
assumption of all such Options, whether or not
exercised, plus (ii) the consideration actually
received by the Corporation upon such exercise, minus
(iii) the consideration paid by the Corporation for
any purchase of such Options which were not
exercised, or (b) an amount equal to (i) the
consideration actually received by the Corporation
for the issue, sale, grant or assumption of all such
Convertible Securities which were actually converted
or exchanged, plus (ii) the additional consideration,
if any, actually received by the Corporation upon
such conversion or exchange, minus (iii) the excess,
if any, of the consideration paid by the Corporation
for any purchase of such Convertible Securities, the
rights of conversion or exchange under which were not
exercised, over an amount that would be equal to the
Fair Value of the Convertible Securities so purchased
if such Convertible Securities were not convertible
into or exchangeable for Additional Shares of Series
A Common Stock; and
(2) in the case of Options for Convertible
Securities, only the Convertible Securities, if any,
actually issued or sold upon the exercise of such
Options were issued at the time of the issue, sale,
grant or assumption of such Options, and the
consideration received by the Corporation for the
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Additional Shares of Series A Common Stock deemed to
have then been issued was an amount equal to (a) the
consideration actually received by the Corporation
for the issue, sale, grant or assumption of all such
Options, whether or not exercised, plus (b) the
consideration deemed to have been received by the
Corporation (pursuant to subparagraph (d)(ix) of this
Article V) upon the issue or sale of the Convertible
Securities with respect to which such Options were
actually exercised, minus (c) the consideration paid
by the Corporation for any purchase of such Options
which were not exercised;
(E) no recomputation pursuant to subsection (C) or
(D) above shall have the effect of increasing such Conversion
Price then in effect by an amount in excess of the amount of
the adjustment thereof originally made in respect of the
issue, sale, grant or assumption of such Options or
Convertible Securities; and
(F) no Additional Shares of Series A Common Stock
shall be deemed to have been issued merely by virtue of an
adjustment to the Conversion Price (and corresponding
Conversion Rate) in accordance with subparagraphs (d)(vi)
through (viii) of this Article V.
(ix) Computation of Consideration. For the purposes of
subparagraphs (d)(vi) through (viii) of this Article V:
(A) The consideration for the issue or sale of any
Additional Shares of Series A Common Stock or for the issue,
sale, grant or assumption of any Options or Convertible
Securities, irrespective of the accounting treatment of such
consideration,
(1) insofar as it consists of cash, shall be
computed as the amount of cash received by the
Corporation, and insofar as it consists of securities
or other property, shall be computed as of the date
immediately preceding such issue, sale, grant or
assumption as the Fair Value of such consideration
(or, if such consideration is received for the issue
or sale of Additional Shares of Series A Common Stock
and the Market Price of such securities is less than
the Fair Value of such consideration, then such
consideration shall be valued at the Market Price of
such Additional Shares of Series A Common Stock), in
each case without deducting any expenses paid or
incurred by the Corporation, any commissions or
compensation paid or concessions or discounts allowed
to underwriters, dealers or others performing similar
services or any accrued interest or dividends in
connection with such issue or sale, and
(2) in case Additional Shares of Series A
Common Stock are issued or sold or Options or
Convertible Securities are issued, sold, granted or
assumed together with other stock or securities or
other assets of the Corporation for a consideration
that covers both, shall be the proportion of such
consideration so received, computed as provided in
clause (i) above, allocable to such Additional Shares
of Series A Common
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Stock or Options or Convertible Securities, as the
case may be, all as determined in good faith by the
Board of Directors or the Corporation.
(B) All Additional Shares of Series A Common Stock,
Options or Convertible Securities issued in payment of any
dividend or other distribution on any class or series of stock
of the Corporation and all Additional Shares of Series A
Common Stock issued to effect a subdivision of the outstanding
shares of Series A Common Stock into a greater number of
shares of Series A Common Stock (by reclassification or
otherwise than by payment of a dividend in Series A Common
Stock) shall be deemed to have been issued without
consideration.
(C) Additional Shares of Series A Common Stock deemed
to have been issued for consideration pursuant to subparagraph
(d)(viii) of this Article V, relating to Options and
Convertible Securities, shall be deemed to have been issued
for a consideration per share determined by dividing
(1) the total amount, if any, received and
receivable by the Corporation as consideration for
the issue, sale, grant or assumption of the Options
or Convertible Securities in question, plus the
minimum aggregate amount of additional consideration
(as set forth in the instruments relating thereto,
without regard to any provision contained therein for
a subsequent adjustment of such consideration)
payable to the Corporation upon the exercise in full
of such Options or the conversion or exchange of such
Convertible Securities or, in the case of Options for
Convertible Securities, the exercise of such Options
for Convertible Securities and the conversion or
exchange of such Convertible Securities, in each case
computing such consideration as provided in the
foregoing subsection (A);
by
(2) the maximum number of shares of Series A
Common Stock (as set forth in the instruments
relating thereto, without regard to any provision
contained therein for a subsequent adjustment of such
number) issuable upon the exercise of such Options or
the conversion or exchange of such Convertible
Securities.
(x) Treatment of Stock Dividends, Stock Splits and the Like.
In case the Corporation, at any time or from time to time after the
Original Issue Date of the Series B Common Stock or the Series C Common
Stock, as the case may be, shall declare or pay any dividend or other
distribution on any class or series of securities of the Corporation
payable in shares of Series A Common Stock, or shall effect a
subdivision of the outstanding shares of Series A Common Stock into a
greater number of shares of Series A Common Stock (by reclassification
or otherwise than by payment of a dividend in Series A Common Stock),
then, and in each such case, Additional Shares of Series A Common Stock
shall be deemed to have been issued (A) in the case of any such
dividend or other distribution, immediately after the close of business
on the record date for the determination of holders of any class or
series of securities entitled to receive such dividend or other
distribution (or if no such record is taken, then immediately prior to
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such payment or other distribution), or (B) in the case of any such
subdivision, at the close of business on the day immediately prior to
the day upon which such corporate action becomes effective.
(xi) Adjustments for Combinations and the Like. In case at any
time or from time to time after the Original Issue Date of the Series B
Common Stock or the Series C Common Stock, the outstanding shares of
Series A Common Stock shall be combined or consolidated, by
reclassification or otherwise, into a lesser number of shares of Series
A Common Stock, the Conversion Price of the Series B Common Stock or
the Series C Common Stock, as applicable, in effect immediately prior
to such combination or consolidation shall, concurrently with the
effectiveness of such combination or consolidation, be proportionately
increased.
(xii) Adjustments for Reclassification, Exchange and
Substitution. If the Series A Common Stock issuable upon conversion of
the Series B Common Stock or the Series C Common Stock shall be changed
into the same or a different number of shares of any other class or
series of stock, whether by capital reorganization, reclassification or
otherwise (other than a subdivision or combination of shares provided
for above), the Conversion Price (and the corresponding Conversion
Rate) then in effect with respect to the Series B Common Stock or the
Series C Common Stock, as the case may be, shall, concurrently with the
effectiveness of such reorganization or reclassification, be
proportionately adjusted such that the Series B Common Stock and the
Series C Common Stock shall be convertible into, in lieu of the number
of shares of Series A Common Stock that the holders would otherwise
have been entitled to receive, that number of shares of such other
class or series of stock equal to the number of shares of Series A
Common Stock issuable upon conversion of the Series B Common Stock or
the Series C Common Stock (adjusted for any combinations,
consolidations, stock splits, or stock distributions or dividends with
respect to such shares) immediately prior to such capital
reorganization or reclassification as would have been subject to
receipt by the holders upon conversion of such series immediately
before that change.
(xiii) Reorganizations, Mergers, Consolidations and Sales of
Assets. If at any time or from time to time, there is a capital
reorganization of the Series A Common Stock (other than a
recapitalization, subdivision, combination, reclassification, exchange
or substitution of shares provided for elsewhere in this paragraph
(d)), then, as a part of such capital reorganization, provision shall
be made so that the holders of each of the Series B Common Stock and
the Series C Common Stock shall thereafter be entitled to receive upon
conversion of shares of such series the number of shares of stock or
other securities or property of the Corporation to which a holder of
the number of shares of Series A Common Stock deliverable upon
conversion of the applicable series would have been entitled on such
capital reorganization, subject to adjustment in respect of such stock
or securities by the terms thereof. In any such case, appropriate
adjustment shall be made in applying the provisions of this paragraph
(d) with respect to the rights of the holders of the Series B Common
Stock and the Series C Common Stock after the capital reorganization to
the end that the provisions of subparagraphs (d)(vi) through (xii) of
this Article V (including adjustment of the Conversion Price of such
series then in effect and the number of shares issuable upon conversion
of the Series B Common Stock and the
15
Series C Common Stock, respectively) shall be applicable after that
event and be as nearly equivalent as practicable.
(xiv) Minimum Adjustment of Exercise Price. If the amount of
any adjustment of the Conversion Price of the Series B Common Stock or
the Series C Common Stock required hereunder would be less than 1% of
such Conversion Price in effect at the time such adjustment is
otherwise so required to be made, such amount shall be carried forward
and adjustment with respect thereto made at the time of and together
with any subsequent adjustment which, together with such amount and any
other amount or amounts so carried forward, shall equal in the
aggregate at least 1% of such Conversion Price.
(xv) Notice of Adjustment. Upon the occurrence of any event
requiring an adjustment of the Conversion Price of the Series B Common
Stock or the Series C Common Stock, then and in each such case the
Corporation shall promptly deliver to each holder of such shares of
such stock an officer's certificate stating the applicable Conversion
Price resulting from such adjustment and the increase or decrease, if
any, in the number of shares of Series A Common Stock issuable upon
conversion thereof, setting forth in reasonable detail the method of
calculation and the facts upon which such calculation is based. Within
ninety (90) days after the end of each fiscal year in which any such
adjustment shall have occurred, or within thirty (30) days after any
request therefor by any holder of Series B Common Stock or Series C
Common Stock stating that such holder contemplates the conversion of
such stock, the Corporation will obtain and deliver to such holder the
opinion of its regular independent auditors or another firm of
independent public accountants of recognized national standing selected
by the Board of Directors, which opinion shall confirm the statements
in the most recent officer's certificate delivered under this
subparagraph (d)(xv). It is understood and agreed that the independent
public accountants rendering any such opinion shall be entitled
expressly to assume in such opinion the accuracy of any determination
of fair value made by the Board of Directors pursuant to subparagraph
(d)(ix) of this Article V.
(xvi) Other Notices. In case at any time:
(A) the Corporation shall declare to the holders of
Series A Common Stock any dividend in cash, whether or not a
regular cash dividend;
(B) the Corporation shall declare or pay any dividend
upon Series A Common Stock payable in stock or make any
special dividend or other distribution (other than cash
dividends) to the holders of Series A Common Stock;
(C) the Corporation shall offer for subscription pro
rata to the holders of Series A Common Stock any additional
shares of stock of any class or series or other rights;
(D) there shall be any capital reorganization or
reclassification of the capital stock of the Corporation or
Sale or Merger;
16
(E) there shall be a voluntary or involuntary
Liquidation or any partial liquidation of the Corporation or
distribution to holders of Series A Common Stock;
(F) there shall be made any tender offer for any
shares of capital stock of the Corporation; or
(G) the Series A Common Stock shall cease to be or
shall be suspended from being a publicly traded security, (i)
listed on the New York Stock Exchange or the American Stock
Exchange, (ii) quoted by the Nasdaq Market or any successor
thereto or comparable system, or (iii) quoted or published in
the over-the-counter market;
then, in any one or more of such cases, the Corporation shall
give to each holder of shares of Series B Common Stock or Series C Common Stock
(1) at least fifteen (15) days prior to any event referred to in subsection (A)
or (B) above, at least thirty (30) days prior to any event referred to in
subsection (C), (D) or (E) above, and within five (5) days after it has
knowledge that any of the events specified in subsections (F) and (G) is
imminent, written notice of the date on which the books of the Corporation shall
close or a record shall be taken for such dividend, distribution or subscription
rights or for determining rights to vote in respect of any such reorganization,
reclassification, consolidation, Sale or Merger, Liquidation, or partial
liquidation or the date by which stockholders must tender shares in any tender
offer and (2) in the case of any such reorganization, reclassification,
consolidation, Sale or Merger, Liquidation, partial liquidation or tender offer
known to the Corporation, at least thirty (30) days' prior written notice of the
date (or, if not then known, a reasonable approximation thereof by the
Corporation) when the same shall take place. Such notice in accordance with the
foregoing clause (1) shall also specify, in the case of any such dividend,
distribution or subscription rights, the date on which the holders of Series A
Common Stock shall be entitled thereto, and such notice in accordance with the
foregoing clause (2) shall also specify the date on which the holders of Series
A Common Stock shall be entitled to exchange their Series A Common Stock for
securities or other property deliverable upon such reorganization,
reclassification, consolidation, Sale or Merger, Liquidation, partial
liquidation or tender offer, as the case may be. Such notice shall also state
that the action in question or the record date is subject to the effectiveness
of a registration statement under the Securities Act of 1933, as amended, or to
a favorable vote of security holders, if either is required.
(xvii) Prohibition of Certain Actions. In addition to any
other rights provided by law, at any time when shares of Series B
Common Stock or Series C Common Stock are outstanding, except where the
vote or written consent of the holders of a greater number of shares of
the Corporation is required by law, and in addition to any other vote
required by law, without the consent of the holders of at least
two-thirds (66 2/3%) of the then outstanding shares of Series B Common
Stock and Series C Common Stock, given in writing or by a vote in a
meeting, consenting or voting (as the case may be) separately as a
single group, the Corporation will not, by amendment of the Certificate
of Incorporation or bylaws or through any reorganization, transfer of
assets, consolidation, merger, dissolution, issue or sale of securities
or any other voluntary action, avoid or seek to avoid the observance or
performance of any of the terms to be observed or performed
17
by the Corporation under this paragraph (d), but will at all times in
good faith assist in the carrying out of all the provisions of this
paragraph (d) and in the taking of all such action as may reasonably be
requested by any holder of shares of Series B Common Stock or Series C
Common Stock in order to protect the privileges of each holder against
dilution or other impairment, consistent with the tenor and purpose of
this paragraph (d). Without limiting the generality of the foregoing,
the Corporation (A) will not increase the par value of any shares of
Series A Common Stock receivable upon the conversion of shares of
Series B Common Stock or Series C Common Stock above the applicable
Conversion Price then in effect, (B) will take all such action as may
be necessary or appropriate in order that the Corporation may validly
and legally issue fully paid and nonassessable shares of Series A
Common Stock, free and clear of any liens, charges or encumbrances upon
the conversion of shares of Series B Common Stock or Series C Common
Stock from time to time outstanding, (C) will not take any action which
results in any adjustment of the applicable Conversion Price if the
total number of shares of Series A Common Stock issuable after the
action upon the conversion of all outstanding shares of Series B Common
Stock and Series C Common Stock would exceed the total number of shares
of Series A Common Stock then authorized by this Certificate of
Incorporation and available for the purpose of issue upon such
conversion, (D) will not issue any capital stock of any class or series
which has the right to more than one vote per share or any capital
stock of any class or series which is preferred as to dividends or as
to the distribution of assets upon voluntary or involuntary
dissolution, liquidation or winding-up, unless the rights of the
holders thereof shall be limited to a fixed sum or percentage (or
floating rate related to market yields) of par value or stated value in
respect of participation in dividends and a fixed sum or percentage of
par value or stated value in any such distribution of assets, and (E)
will not otherwise amend, alter or change the designations or the
powers, preferences, rights, privileges or restrictions of the Series B
Common Stock or the Series C Common Stock materially or adversely.
(xviii) Stock to be Reserved. The Corporation will at all
times reserve and keep available out of its authorized but unissued
Series A Common Stock, solely for the purpose of issue upon the
conversion of all outstanding shares of Series B Common Stock and
Series C Common Stock, such number of shares of Series A Common Stock
as shall then be issuable upon the conversion of all outstanding shares
of Series B Common Stock and Series C Common Stock, and the Corporation
will maintain at all times all other rights and privileges sufficient
to enable it to fulfill all its obligations hereunder. The Corporation
covenants that all shares of Series A Common Stock that shall be so
issuable shall, upon issuance, be duly authorized, validly issued,
fully paid and nonassessable, free from preemptive or similar rights on
the part of the holders of any shares of capital stock or securities of
the Corporation or any other person, and free from all taxes, liens,
charges and encumbrances with respect to the issue thereof. The
Corporation will take all such action as may be necessary to assure
that such shares of Series A Common Stock may be so issued without
violation of any applicable law or regulation, or of any applicable
requirements of the National Association of Securities Dealers, Inc.
and of any domestic securities exchange upon which the Series A Common
Stock may be listed.
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ARTICLE VI.
No holder of any of the shares of stock of the Corporation, whether now
or hereafter authorized or issued, shall have any pre-emptive rights or
preference rights, or be entitled, as of right, to purchase or subscribe for (a)
any unissued stock of any class, or (b) any additional stock of any class to be
issued by reason of any increase in the authorized capital stock of the
Corporation of any class, or (c) any warrants, options or rights to purchase or
subscribe for shares of stock of the Corporation of any class, or to purchase or
subscribe for any convertible or exchangeable obligations, whether now or
hereafter authorized or whether unissued or issued and thereafter acquired by
the Corporation. Any such stock or other securities herein enumerated may be
issued and disposed of pursuant to resolutions of the Board of Directors at such
prices and upon such terms as may be deemed advisable to the Board of Directors
in the exercise of its discretion.
ARTICLE VII.
No director of the Corporation shall be personally liable to the
Corporation or its stockholders for monetary damages for any breach of fiduciary
duty by such a director as a director. Notwithstanding the foregoing sentence, a
director shall be liable to the extent provided by applicable law (i) for any
breach of the director's duty of loyalty to the Corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve intentional
misconduct or a knowing violation of law, (iii) pursuant to Section 174 of the
DGCL or (iv) for any transaction from which such director derived an improper
personal benefit. No amendment to or repeal of this Article VII shall apply to
or have any effect on the liability or alleged liability of any director of the
Corporation for or with respect to any acts or omissions of such director
occurring prior to such amendment or repeal. If the DGCL is amended hereafter to
further eliminate or limit the personal liability of directors, the liability of
a director of this Corporation shall be limited or eliminated to the fullest
extent permitted by the DGCL, as amended.
ARTICLE VIII.
The following provisions are inserted for the management of the
business and the conduct of the affairs of the Corporation, and for further
definition, limitation and regulation of the powers of the Corporation and of
its directors and stockholders:
(a) The business and affairs of the Corporation shall be managed by or
under the direction of the Board of Directors. In addition to the powers and
authority expressly conferred upon them by the DGCL or by this Certificate of
Incorporation or the Bylaws of the Corporation, the directors are hereby
empowered to exercise all such powers and do all such acts and things as may be
exercised or done by the Corporation.
(b) The Board of Directors may adopt, amend or repeal the Bylaws of
this Corporation.
(c) Election of directors need not be by written ballot.
19
ARTICLE IX.
The Corporation reserves the right to repeal, alter, amend or rescind
any provisions contained in this Certificate of Incorporation in the manner now
or hereafter prescribed by the laws of the State of Delaware, except as
otherwise limited by the other provisions of this Certificate of Incorporation,
and all rights conferred on stockholders herein are granted subject to this
reservation.
ARTICLE X.
(a) Right to Indemnification. Each person who was or is made a party to
or is threatened to be made a party to or is involuntarily involved in any
action, suit or proceeding, whether civil, criminal, administrative or
investigative (a "Proceeding"), by reason of the fact that he or she is or was a
director or officer of the Corporation, or is or was serving (during his or her
tenure as a director and/or an officer) at the request of the Corporation as a
director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust or other enterprise, whether the basis of such Proceeding
is an alleged action or inaction in an official capacity as a director or
officer or in any other capacity while serving as a director or officer, shall
be indemnified and held harmless by the Corporation to the fullest extent
authorized by the DGCL (or other applicable law), as the same exists or may
hereafter be amended, against all expense, liability and loss (including
attorneys' fees, judgments, fines, taxes, penalties and amounts paid or to be
paid in settlement) reasonably incurred or suffered by such person in connection
with such Proceeding. Such director or officer shall have the right to be paid
by the Corporation for expenses incurred in defending any such Proceeding in
advance of its final disposition; provided, however, that, if the DGCL (or other
applicable law) requires, the payment of such expenses in advance of the final
disposition of any such Proceeding shall be made only upon receipt by the
Corporation of an undertaking by or on behalf of such director or officer to
repay all amounts so advanced if it should be determined ultimately that he or
she is not entitled to be indemnified under this Article X or otherwise.
(b) Non-Exclusivity of Rights. The rights conferred by this Article X
shall not be exclusive of any other right which any director, officer,
representative, employee or other agent may have or hereafter acquire under the
DGCL or any other statute, or any provision contained in this Certificate of
Incorporation or the Corporation's Bylaws, or any agreement, or pursuant to a
vote of stockholders or disinterested directors, or otherwise.
(c) Insurance and Trust Fund. In furtherance and not in limitation of
the powers conferred by statute:
(i) the Corporation may purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is serving at the request of the
Corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise,
against any liability asserted against him and incurred by him in any
such capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such
liability under the provisions of law; and
20
(ii) the Corporation may create a trust fund, grant a security
interest and/or use other means (including, without limitation, letters
of credit, surety bonds and/or other similar arrangements), as well as
enter into contracts providing indemnification to the fullest extent
permitted by law and including as part thereof provisions with respect
to any or all of the foregoing, to ensure the payment of such amount as
may become necessary to effect indemnification as provided therein, or
elsewhere.
(d) Indemnification of Employees and Agents of the Corporation. The
Corporation may, to the extent authorized from time to time by the Board of
Directors, grant rights to indemnification, including the right to be paid by
the Corporation the expenses incurred in defending any Proceeding in advance of
its final disposition, to any employee or agent of the Corporation to the
fullest extent of the provisions of this Article X or otherwise with respect to
the indemnification and advancement of expenses of directors and officers of the
Corporation.
(e) Survival of Rights. The rights set forth in this Article X are
contract rights and survive any change to this Article X. Any repeal or
modification of this Article X shall not change the rights of an officer or
director to indemnification with respect to any action or omission occurring
prior to such repeal or modification.
ARTICLE XI.
The address of the Corporation's registered office in the State of
Delaware is 1209 Orange Street, in the City of Wilmington, County of New Castle.
The name of its registered agent at such address is The Corporation Trust
Company.
ARTICLE XII.
Any action which is required to be or may be taken at any annual or
special meeting of stockholders of the Corporation may be taken without a
meeting, without prior notice to stockholders and without a vote if consents in
writing, setting forth the action so taken, shall have been signed by all of the
stockholders of the Corporation.
IN WITNESS WHEREOF, this Amended and Restated Certificate of
Incorporation, which restates and integrates and does further amend the
provisions of the Corporation's Certificate of Incorporation and having been
duly adopted and approved in accordance with the General Corporation Law of the
State of Delaware, has been executed this 6th day of November, 2003, by E.
Randall Chestnut, the Corporation's authorized officer.
/s/ E. RANDALL CHESTNUT
------------------------------------------
E. Randall Chestnut,
Chairman of the Board, President and Chief
Executive Officer
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